United States v. William Russell ( 2022 )


Menu:
  •                          NOT RECOMMENDED FOR PUBLICATION
    File Name: 22a0038n.06
    No. 21-5519
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    UNITED STATES OF AMERICA,                               )                      Jan 24, 2022
    )                  DEBORAH S. HUNT, Clerk
    )
    Plaintiff-Appellee,
    )
    )      ON APPEAL FROM THE
    v.                                              UNITED STATES DISTRICT
    )
    )      COURT FOR THE WESTERN
    WILLIAM FARRELL RUSSELL,                                       DISTRICT OF TENNESSEE
    )
    )
    Defendant-Appellant.
    )
    Before: GRIFFIN, DONALD, and BUSH, Circuit Judges.
    GRIFFIN, Circuit Judge.
    A jury found defendant William Russell guilty of two child-pornography crimes.
    He appeals his within-Guidelines sentence on procedural- and substantive-reasonableness
    grounds. We affirm.
    I.
    Law enforcement officials communicated online with a user who eventually shared
    numerous images and videos of child pornography. They identified Russell as the user, and he
    admitted to sending the images. A search of his residence yielded additional illicit materials.
    A jury convicted Russell of distributing and possessing child pornography in violation of
    
    18 U.S.C. § 2252
    (a)(2) and (a)(4)(B). Over defendant’s objections, the district court found
    applicable several sexual-exploitation-of-a-minor sentencing enhancements, including knowingly
    engaging in distribution (U.S.S.G. § 2G2.2(b)(3)(F)); using a computer to possess and distribute
    No. 21-5519, United States v. Russell
    (§ 2G2.2(b)(6)); and committing an offense involving 600 or more images (§ 2G2.2(b)(7)(D)). It
    then calculated Russell’s Guidelines range and imposed a sentence at its top end of 262 months.
    II.
    Russell challenges his sentence on several grounds. Our review of a district court’s
    “sentencing decisions is limited to determining whether they are reasonable,” using the familiar
    abuse-of-discretion standard. Gall v. United States, 
    552 U.S. 38
    , 46 (2007) (internal quotation
    marks omitted). “Reasonableness review has both substantive and procedural components.”
    United States v. Keller, 
    498 F.3d 316
    , 322 (6th Cir. 2007). We address each in turn.
    A.
    A district court must properly calculate a defendant’s Guidelines range for a sentence to be
    procedurally reasonable. United States v. Rayyan, 
    885 F.3d 436
    , 440 (6th Cir. 2018). This
    includes its application of a sentence enhancement under the Guidelines. United States v. Walters,
    
    775 F.3d 778
    , 781 (6th Cir. 2015).        Russell takes issue with the three above-referenced
    enhancements. Upon review of the district court’s factual findings for clear error and its legal
    conclusions de novo, United States v. Angel, 
    576 F.3d 318
    , 320 (6th Cir. 2009), we cannot say that
    the district court’s application of these enhancements constitutes an abuse of discretion, Gall,
    
    552 U.S. at 46
    .
    1.
    Section 2G2.2(b)(3) provides enhancements for the distribution of child pornography.
    Here the district court applied a two-level increase after concluding Russell “knowingly engaged
    in distribution.” § 2G2.2(b)(3)(F). Russell raises a double-counting challenge to the district
    court’s application of this enhancement. “Double counting occurs when precisely the same aspect
    of a defendant’s conduct factors into his sentence in two separate ways,” Walters, 775 F.3d at 782
    -2-
    No. 21-5519, United States v. Russell
    (internal quotation marks omitted), which Russell says happened here because the distribution
    element of his conviction was already accounted for by his base offense level.
    Walters forecloses this argument. There we held that because both the criminal statute
    (
    18 U.S.C. § 2252
    (a)(2)) and the applicable Guidelines commentary (U.S.S.G. § 2G2.2, cmt. n.1)
    differentiate between receipt and distribution, a defendant may be convicted of a distribution
    offense and receive a distribution enhancement without running afoul of the general prohibition
    on double counting. Id. at 784–85. And, this holding aside, even if Russell’s base offense level
    and the enhancement are premised on the same conduct, “double counting is permissible where it
    appears Congress or the Sentencing Commission intended to attach multiple penalties to the same
    conduct,” and here, “§ 2G2.2(b)(3)(F)’s two-level enhancement is an indication from Congress
    and the Sentencing Commission that [the] base offense level . . . does not purport to completely
    address the range of harms caused by the distribution of child pornography.” United States v.
    Davis, 659 F. App’x 864, 866 (6th Cir. 2016) (citing Walters, 775 F.3d at 784). The district court
    therefore correctly applied this enhancement.
    2.
    We turn next to § 2G2.2(b)(6)’s enhancement for “the use of a computer or an interactive
    computer service for the possession, transmission, receipt, or distribution of” child pornography.
    Like many defendants before, Russell complains that because nearly all child-pornography
    convictions in today’s technology-filled age stem from the use of a computer, § 2G2.2(b)(6) cannot
    be by its very definition a specific offense characteristic. But an “enhancement is valid, no matter
    how often it applies,” United States v. Lynde, 
    926 F.3d 275
    , 280 (6th Cir. 2019) (citation omitted),
    and Walters again renders Russell’s claim of appeal unmeritorious. There we noted that “[t]he
    Commission purposefully set both the base offense level and the degree of enhancement with the
    -3-
    No. 21-5519, United States v. Russell
    frequency of computer use in mind. We have adopted that rationale and rejected arguments that
    the computer enhancement should not be used simply because it is applied frequently.” 775 F.3d
    at 786 (internal citation omitted). To the extent Russell’s appeal hints at a double-counting
    challenge, that too runs headlong into circuit precedent. See, e.g., United States v. Lewis, 
    605 F.3d 395
    , 403 (6th Cir. 2010). We therefore discern no error in the district court’s conclusion that the
    use-of-a-computer enhancement applies.
    3.
    The last challenged enhancement, § 2G2.2(b)(7), increases a defendant’s base offense level
    depending upon the number of images involved. Russell’s offense conduct involved 111 images
    and 35 videos (each of which, under the Guidelines commentary, is considered to have 75 images),
    for a total of 2,736 images. U.S.S.G. § 2G2.2(b)(7), cmt. n.6. His 600 or more images earned
    Russell a 5-level increase. § 2G2.2(b)(7)(D).
    As he did below, Russell argues the district court erroneously found he satisfied the 600-
    image threshold because some videos were “inaccessible” thumbnails. But he did not produce
    evidence challenging the presentence report’s factual findings, and his failure to do so means the
    district court was “entitled to rely on those facts when sentencing” Russell. United States v.
    Geerken, 
    506 F.3d 461
    , 467 (6th Cir. 2007). That is, although he generally challenged the
    accessibility of some of the videos, he offered no evidence supporting his position that the
    thousands of images attributed to him reflected an overcounting sufficient to drop him below 600.
    For this reason, we cannot say the district court clearly erred in finding Russell’s offense involved
    600 or more images.
    -4-
    No. 21-5519, United States v. Russell
    B.
    Finding no procedural infirmities with his sentence, we consider next its substantive
    reasonableness. A sentence is substantively unreasonable when a district court “place[s] too much
    weight on some of the [18 U.S.C.] § 3553(a) factors and too little on others in sentencing the
    individual.” Rayyan, 885 F.3d at 442. It is in essence a claim that a sentence is “too long (if a
    defendant appeals) or too short (if the government appeals).” Id. Mindful of our institutional
    limitations as a reviewing court, we exercise “a great deal of deference” when reviewing a
    defendant’s sentence for substantive reasonableness. United States v. Mayberry, 
    540 F.3d 506
    ,
    519 (6th Cir. 2008). We presume Russell’s within-Guidelines sentence is reasonable. United
    States v. Vonner, 
    516 F.3d 382
    , 389–90 (6th Cir. 2008) (en banc).
    Russell has not rebutted this presumption. Initially, the record belies his accusation that
    aside from his offense conduct, the district court “did not discuss” the remaining § 3553(a) factors.
    A full review of the sentencing record shows the district court considered the pertinent factors in
    crafting a sentence sufficient, but not greater than necessary, to comply with the purposes of
    § 3553(a). It found that “almost all of the factors would justify a high end sentence”—which it
    ultimately imposed—“or possibly even an upward variance.” Russell’s offense conduct was
    “extremely serious” in the district court’s view given his “apparent willingness . . . to recruit others
    to engage in making pornography, child pornography, and to the point of trying to arrange to have
    a sexual relationship with the 13 year old child.” With this in mind, the district court found a
    “substantial need” to deter this kind of conduct in spite of Russell being 60 years old, presenting
    “some physical health issues,” and having a “very difficult childhood.” And while this weighing
    of the § 3553(a) factors certainly was not how Russell wanted it to be given his history and
    characteristics, it does not compel the conclusion that the district court imposed an arbitrary
    -5-
    No. 21-5519, United States v. Russell
    sentence or ignored his arguments for greater leniency. See United States v. Houston, 
    813 F.3d 282
    , 296 (6th Cir. 2016). Put differently, we will not find unreasonable Russell’s sentence just
    because he thinks the district court should have balanced the sentencing factors differently. See
    United States v. Adkins, 
    729 F.3d 559
    , 571 (6th Cir. 2013).
    III.
    For these reasons, we affirm the district court’s judgment.
    -6-